B.C. lawsuit against drug manufacturers may be legal but perhaps not ethical: law professors

Government passed law after filing lawsuit against opioid drug makers

The B.C. government’s retroactive creation of law to grease legal rails for a class-action suit against opioid companies may be legal, but experts say it is not necessarily ethical.

NDP Attorney General David Eby and Minister of Mental Health and Addictions Judy Darcy announced in August they were pursuing legal action against 40-plus opioid manufacturers, wholesalers and distributors to recover millions of dollars in opioid-related health-care costs.

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The government hoped to speed up legal action by enacting of The Opioid Damages and Health Care Costs Recovery Act in October.

Toronto’s Osgoode Hall Law School Prof. Lorne Sossin said the act is patterned on the 2000 Tobacco Damages and Health Care Costs Recovery Act passed to help B.C.’s government sue big tobacco companies.

The tobacco firms challenged that law at Canada’s Supreme Court, alleging it was unconstitutional, a violation of judicial independence and out of B.C.’s legal jurisdiction. However, the top court ruled retroactive law-creation is allowed – except in criminal law.

“The act is constitutionally valid,’ the court said in September 2005.

Sossin said the high court ruling is applicable in the opioid suit but red-flagged the new act ethically. He said there should be concerns “with legislation that appears to put the government’s thumb on the scale of litigation in which it is a party.”

University of Calgary law Prof. Martin Olszynski said “there’s a sense of unease” around legislation that “purports to change the rules of the game.” But, he said, any ethical judgment on government about whether such legal moves are appropriate to address opioid crisis harms is best left to voters and the ballot box.

Recruiting provinces to be class action members was on Eby’s agenda as he met with provincial counterparts in St. John’s, Newfoundland recently.

“B.C. will continue to engage with other provinces as this litigation proceeds through the courts,” a statement from the Ministry of Attorney General said.

B.C. brought the opioid class action on behalf of all federal, provincial and territorial governments that paid opioid-related health care, pharmaceutical and treatment costs since 1996.

Other Canadian jurisdictions can participate in the suit if the Supreme Court certifies it as a class action.

Also on Eby’s St. John’s agenda was establishing a working group to assist with information sharing and co-ordination on the human and financial costs of the overdose crisis.